This article was written by Bern Lefson, SCORE Orange County Management Counselor
As the use of social networks expands, it is tempting to use such sites for finding information about potential hires. This is enticing to small businesses due to its low or non-cost. It is a useful source of information if used properly. One can ascertain questions that are legally permitted that may assist in making the hiring choice.
However, there are pitfalls out there for the small business owner who ignores the federal and state statutes that are applicable to hiring employees. This is because these sites contain information about job applicants that employers would not be permitted to ask about during a job interview. Using, and in some cases, simply accessing these pages for employment purposes can result in violations of various anti-discrimination statutes, privacy laws, and federal and state Fair Credit Reporting Acts.
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Americans with Disabilities Act -- as well as several state statutes prohibit employers from inquiring or basing employment decisions, including hiring, on factors such as race, sex, age and disability respectively. an applicant's Facebook page may disclose that an applicant is gay or a lesbian (protected under Title VII), that he or she suffers from a mental disability (protected under the ADA) or reveal an applicant's marital status (protected under California statute) -- all of which are unlawful characteristics for an employer to base employment decisions on.
A cautionary word on just exploring such sites; employers who screen these sites may be providing rejected applicants with a basis for alleging that an employer's decision not to offer them a job was due to a protected characteristic that was clearly visible through the site.
Using a third party to check on a candidate’s background is a good thing if the third party abides by the various statutes that regulate privacy. The Fair Credit Reporting Act (FCRA) governs how employers may use consumer reports procured by consumer-reporting agencies for employment purposes (hiring, promotion, reassignment decisions).
If the owner uses consumer-reporting agencies that research social-media Web sites such as Facebook to conduct investigations of applicants, that owner could be subjected to liability if the applicant was not informed of the search and failed to give written consent.
While the information available online may be very appealing, in light of the potential risks associated with using social-networking sites to screen applicants -- including the fact that the information might not even be accurate – small business owners should carefully weigh the benefits of obtaining information from these sources against the harm of potential employer liability. As stated before, using such information to ask legally proper questions may be the sound way forward.